In the past few months, the Colombian Constitutional Court surprised the government, citizens, and legal scholars by issuing two decisions which struck down two bodies created by legislative act 1 of 2015, a constitutional reform that aimed at a broad constitutional overhaul of the separation of powers. The Court based its decisions in the substitution of the constitution doctrine, under which the Court will strike down constitutional amendments that in its view “replace” core constitutional principles, rather than merely amending the existing constitutional text.

In Decision C-285 of June 1, 2016, the Court struck down the “Judicial Governance Council”, which along with the new “Management Office of the Judicial Branch”, would be responsible for the government and administration of the Judiciary, replacing the existing “Administrative Chamber of the Superior Council of the Judiciary.” Decision C-373 of July 13, 2016 in turn struck down the “Commission of Aforados“, which would be in charge of prosecuting criminal and disciplinary offenses by the Justices of the Supreme Court, the Constitutional Court, the Council of State, the Judicial Governance Council, and also the Attorney General of the Nation. This institution replaced a power previously enjoyed by the Commission of Prosecutions and Accusations of the House of Representatives.

Legislative Act 1 of 2015[1] was proposed by the Santos Administration as a measure to improve the accountability and efficiency of the judicial branch.[2] Its approval occurred in a very unfavorable environment for the judiciary. The public opinion of judicial institutions has decreased: citizens have noted not only the low capacity of the Judiciary to deal with conflict, but also its inefficiency. Another factor contributing in this decline in the reputation of the judiciary was the perception of citizens, civil society groups, and lawyers about the lack of transparency in the appointment of Justices to some of the high courts of the country. This negative environment became further inflamed by a scandal of corruption that affected a justice of the Constitutional Court, who is currently facing an impeachment process before the Senate. For all these reasons, the media and important sectors of public opinion have stated that Colombia is living in a moment of “judicial crisis.”[3]

With its two decisions this year, the Constitutional Court obliterated an institutional design that the government and Congress had advocated as an essential tool to modernize and ensure greater accountability in the courts. In both decisions, the Court applied the so called substitution of the constitution doctrine, first established in Decision C-551 of 2003[4] and later used in a dozen decisions, according to which Congress can amend the existing Constitution but not replace it, because the latter is reserved for the people in their authority as primary constituent power.

Decision C-285 of 2016 ruled that the creation of the Judicial Governance Council (JGC) replaced an essential structure of the Constitution, such as the principle of self-government of the judiciary, which guarantees judicial independence and, therefore, the separation of powers. For the Court, the amendment violated the principle of self-government of the judiciary because the existence of an “autonomous and separate body within the judicial branch itself, responsible for managing its operations, establishes the independence of justice.” According to the Court, the “new institutional structure” responsible for governing and managing the judiciary “materially” lacked the conditions to assume that role, so the constitutional amendment designed “a dysfunctional system that hinders the autonomous management of the Judiciary.”[5]

The decision caused reactions from the executive branch, Congress and political parties, which even suggested the possibility of convening a constituent assembly to reform the judicial branch without Constitutional Court interference, even though after a few days, that option was ruled out by the Santos administration.[6] Besides, the decision managed to bring together the president and the bitter opposition to his administration, led by former President and current Senator Alvaro Uribe: all agreed that a judicial branch is in “crisis” and was improperly resistant to change. To some, these decisions also recalled the role of the judiciary before 1991, when it on several occasions blocked critical constitutional amendments from going forward.[7]

Decision C-373 of 2016, which struck down The Commission of Aforados (CA), unleashed even more mistrust and rejection by political sectors and public opinion. The decision seemed to confirm, to many, that the Court is not willing to allow an amendment affecting the status quo of governance in the judiciary. According to the Court, the creation of the CA, by modifying the system of investigation, prosecution and trial of the Justices of the High Courts, and the Attorney General, “replaced the defining axes of the separation of powers and autonomy, and judicial independence” found in the 1991 Constitution.[8] Demonstrations of support for the decision came from the judiciary itself: the President of the Supreme Court, Margarita Cabello, said that “the Legislative Act overstepped its functions because it encompassed topics related to the structure of the state organization itself.”[9]

In both of these decisions, the use of the doctrine of the substitution of the constitution is problematic. Both seem to confuse the political inconvenience of the constitutional amendment with the substitution of the Constitution,[10] and by doing so the Court threatens to take over a congressional function. As for the Judicial Governance Council (JGC), Legislative Act 1 of 2015 established that it would be made up of the presidents of the High Courts, the Manager of the Office of the Judicial Branch (appointed by the JGC); and members representing justices from high courts, judges from lower courts, and the staff of the judicial branch, as well as members elected by the JGC itself. This body, as it was mentioned before, replaced the Administrative Chamber of the Judicial Council, whose members were elected by the High Courts. In this sense, what the reform did was to replace one body controlled by the judicial branch with another one also controlled by the judicial branch. And while the creation of the JGC has sparked intense debate, and its selection process (which was begun before Decision C-285) has been controversial,[11] it is difficult to argue that Congress undermined judicial independence as a core constitutional principle.

Reforms to the impeachment of the Justices of High Courts and the Attorney General also do not seem like changes that substituted the Constitution. The Commission of Aforados (CA) would be composed of members elected by the Congress from lists submitted by the JGC, i.e. originating from the Judicial Branch, which replaced the Commission of Prosecutions and Accusations of the House of Representatives, long characterized by its ineffectiveness. The other amendments appeared to aim at a greater accountability of the judiciary: The Senate would no longer judge the Justices or the Attorney General for criminal offenses, but the Supreme Court would be in charge of criminal trials after a prior indictment from the CA, whereas in cases of removal for non-criminal malfeasance, the charge would be filed by the CA before the Full Chamber of the House of Representatives, and the trial would be in charge of the Senate. The CA would also be able to suspend the Justices of any of the high courts upon the request of the plenary of that court and upon meeting certain prerequisites. Decision C-373 seems to judge the political convenience of the amendment rather than making a determination of the substitution of the Constitution, for example, when it argues that the exclusive participation of the Congress in the impeachment provides more guarantees for the proper composition of the high courts because the Congress not only bases its decisions on legal assessments, but also may refer to the common good or institutional stability.

Since the 2003 decision that created the substitution of the constitution doctrine,[12] there has been an intense debate between political actors and within the legal academy. Until recently, it seemed that acceptance of it had been gaining ground. Perhaps that was a result of two decisions considered important to preserving the rules of the democratic political game. The first one was Decision C-141 of 2010, which famously declared unconstitutional the call for a constitutional referendum to allow President Alvaro Uribe to run for a third consecutive term in office.[13] The second was the Decision C-1056 of 2012, which declared unconstitutional the constitutional amendment excluding debates on constitutional amendments from the normal constitutional and legal rules governing conflicts of interest. This doctrine has historically been hotly contested within the Court itself, but over time more of a consensus has developed: Decisions C-285 and C-373 of 2016 were eight to one decisions. But since these most recent decisions have been widely perceived as an obstacle to the improvement of judicial administration, they have reopened the legal and political debate about judicial review of constitutional amendments and the allegedly discretionary powers of the Court when it applies the substitution of the constitution doctrine.[14]

The two decisions have reminded Colombians of the political nature of judicial review and constitutional justice. Constitutional tribunals are “special” political actors who must justify their decisions to the interpretive community of jurists. But their political capital is also finite. Influential sectors of the academy, politics, and public opinion have suggested that legal doctrine may not be the only factor explaining Decisions C-285 and C-373 of 2016. And it should not be forgotten that important sectors of public opinion, social movements, and legal scholars have provided valuable support for the progressive agenda – and activist agenda – of the Constitutional Court.[15] This support may be fragile. In addition, the two decisions have generated uncertainty about the chances of survival of any constitutional amendment that addressed the structure of the judiciary, especially the appointment and accountability of high courts.

We may know more about the political role to be played by the Court and the substitution of the constitution doctrine in the coming months. Constitutional changes required to implement the final agreement between the Colombian government and the FARC guerrilla, in the framework of peace talks in La Habana, Cuba, will also be subject to review along these lines.

[10] See Rodrigo Uprimny, distinction between a “political” judgment on the inconvenience of a constitutional reform and a legal judgment on the substitution of the Constitution in the case of the legislative act 01/2015: http://www.dejusticia.org/files/r2_actividades_recursos/fi_name_recurso.776.pdf.

[13] An analysis of the implications and limits of the judicial review of constitutional amendments to preserve democracy, including the Colombian case, can be found in: David E. Landau, Abusive Constitutionalism, U.C., Davis, Vol. 47, 189. 2013. For an alternative approach see: Jorge González-Jácome, On Abusive Constitutionalism: Two Critical Impulses, Int’l J. Const. L. Blog, June 11, 2015, at: http://www.iconnectblog.com/2015/06/on-abusive-constitutionalism-two-critical-impulses/.

[14] Dixon and Landau argue that an effective way to limit the use of the doctrine of unconstitutional constitutional amendment is by tying the Courts to the use of transnational constitutional norms and the engagement with transnational constitutional Law. See: Rosalind Dixon and David Landau: Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment, International Journal of Constitutional Law, Vol. 13, 3, Pp. 605-638.

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